December 19, 2012

On VAW, Rape, Reform, and Rhetoric

Note: This post contains extracts from some earlier posts and is based on tweets posted here: @nsaikia, loosely knit together. It is not confined to the specifics of the instance of rape which have generated outrage. It links to a number of non-Indian articles — violence against women isn’t a specifically Indian issue. Further, it is entirely from a personal perspective, and could well involve misunderstanding core issues. That said, it is also based on years of having attempted to learn about rape. Finally, it's been posted unedited, and will probably be edited later.

Each time there’s an instance of violence against women (VAW) which is considered serious and which generates shock and outrage, both the shock and outrage are inexplicable to me. Never mind that it seems to happen about once a quarter. The only time I ever see either shock or outrage relating to VAW is when something considered to be out of the ordinary has occurred, and even then, both the shock and the outrage invariably die out in minutes — until the next time a shock-and-outrage-generating instance of violence against women occurs.

At all other times, though, violence is considered to be normal. In India, and outside it. As a girl and a woman, you can, as Lidia Yuknavitch said, ‘travel through male violence like it's part of what living a life means’. It is normal, and women structure their lives around the possibility of having to contend with male violence both in their homes and beyond. The simplest decisions women make — what to wear, where to go, what to do — are often made keeping in mind the possibility of male violence.

Take attire alone— If one were to consider Delhi, and, in all likelihood, most other places, almost every woman would tell you that clothing is not dictated not just by the weather and the occasion, but also by what should ideally be extraneous considerations: the time, the route, the mode of transport, whether or not one is accompanied by a man, the destination. Most of it is common sense: as a woman, your aim must be to reach your destination in one piece, and get back just as safely. And it is simply common sense to do what you can to realise that aim. To spend a considerable amount of time every single day wondering about the ‘safety’ of your clothing is not, however, by any standards, an insignificant problem. It is undoubtedly not a problem of the same intensity as rape and dowry deaths — possibly the most often quoted examples of ‘serious issues’ — but that does not mean that it is not a problem on the same scale, the same continuum of issues.

And, yet, it is an issue which is treated as a non-issue as so many other issues are. As one inches up the scale to issues which are considered more serious, general attitudes change little. Street harassment, referred to by the benign term ‘eve-teasing’ is a normal part of life, and as a woman, you do what you can to adjust to it. You wear clothes which are deemed acceptable. You keep out of the way in public, attempt to draw no attention to yourself, and hope that you’re invisible — knowing that should you targeted by some man, responsibility for having been harassed will be attributed to you, and not to the man who chose to target you.

The questions invariably are ‘What were you wearing?’, ‘What did you do?’, ‘Were you friendly?’ — there is, of course, no question, in the public eye, of the man having been responsible for choosing to target you. Women who are not deemed ‘good’ apparently have no right to complain of harassment. And men, apparently, do not target ‘good’ women. Never mind that case after case, coupled with reams of anecdotal evidence, has conclusively shown that being harassed by a man on the street has nothing to do with a woman’s conduct or attire — a man who chooses to target a woman will do so, he will almost invariably do so with complete impunity, and he knows that — just as a woman knows that keeping a ‘low profile’ and dressing conservatively will not keep her safe.

Other men will almost always look on; some enjoying the spectacle, others choosing not to get involved. Almost none acknowledging that if street harassment is to be curbed, it requires active involvement from men who intervene and stand up for women who are being harassed. As a woman, there is only so much one can say— and, the fact of the matter is that, as a general rule, nothing a woman says makes an iota of difference to a man on a street harassing her. He doesn’t see her as a human being, only as an object, which is, in all probability, a rather unfortunate manifestation of the lack of value and respect which Indian society accords to women, as well as a manifestation of its willingness to treat women as commodities which are both easily replaceable and fungible.

This is by no means the only form of violence against women where dynamics such as these play out — they’re seen with reference to virtually every form of violence against women. The wife who is beaten and asked what she did to provoke her partner. The employee who is harassed at work and asked what she wore. The job applicant who is raped and asked if she consented to get a job. It happens over and over again, and it is considered to be normal, if not acceptable.

After all, even when it comes to ‘serious’ issues like rape, the general belief is that most rapes are ‘technical’. A lawyer and former Indian Police Service, according to an article, said, “the police informally classify rape into two categories: technical and violent. ‘In the case of technical rapes, there is an element of consent involved at some stage and there is no violence.’” He’s also explained in another article: “Except for a few violent rape cases where brutal force is used most other cases involve some degree of consensual sex.’’ The article goes on to say, “according to him, rape charges have be known to be made by women who have been jilted and by minor girls who have had a consensual relationship with older men. Commercial sex workers have also pressed rape charges against clients after being shortchanged. There have also been cases of women crying “rape’’ when they’re caught in the act.” This was, in broad strokes, also what was said in a programme on rape on a popular news-channel on December 18, 2012, and was not challenged by the anchor of the programme.

The differentiation between technical and violent rape is, however, not one recognised by the Indian Penal Code — which probably explains why it is informal — and it appears to result in only violent rape being recognised as serious and ‘real’. Rape which does not involve violence seems to fall into the same broad category as false rape allegations. It doesn’t matter that rape is not generally a violent crime. And never mind that the percentage of false rape allegations is in single digits, regardless of the study referred to, and that it is usually one of the lower single digits. (There are stats, studies, and research papers galore, easily accessible online, should anyone actually want confirmation.)

The belief in the abundance of false rape allegations is, nonetheless, pervasive. Short of a woman being left for dead, or being assaulted in a manner which cannot be defended by allusions to her clothes or conduct, it is invariably the woman who is held accountable for having been raped. And it is in these circumstances that rapes are (under)reported. We may no longer physically torture women subjected to rape in court to verify their testimonies, as Zenmanta pointed out, but we still engage in symbolic substitutes: ‘she is expected to tell the same story while dealing with police officers and other officials who may doubt her story. Underlying this are two assumptions: (1) that women often lie about rape, and (2) that if a woman consents to sex once, she has consented for all time. The first of these developed primarily to protect male power and privilege. The second of these is based in the notion of women as property and virgins as particularly valuable. Once a woman has had sex, her value is reduced, so no more harm can be done.’

Some of these assumptions have been diluted by modern laws, the vestiges of others are still in existence. Clause (4) of Section 155 of the Indian Evidence Act which allowed the sexual history of a rape victim to be used to impeach her credit as a witness was, for example, deleted from the statute in 2003. As such, in theory, a rape victim’s sexual history is irrelevant in a prosecution for rape. The issue of consent is far more difficult to resolve though. It is not the law that a only a virgin can be raped, but it is far more difficult for a woman who is not a virgin — particularly if she lives in a manner not socially-approved — to be able to prove rape. In addition to this, even if a woman does live in a socially approved manner, there are circumstances where she would not be considered to have been raped in the eyes of the law. For example, marital rape has been held not to be a criminal offence.

Issues of consent, are of course, never easy to navigate whether at a personal level or at the legal level. While the ideal may be for consent to necessarily be an affirmative act “Yes means Yes”, and not just “No means No”, the fact of the matter is that many men believe that “No means Yes”, often making life untenable for women. Even at the more benign end of the spectrum of rape apologism is the “but she didn't say no” defence. However, despite its being widely treated as being sensible and entirely acceptable within the rape-defence paradigm, applying this supposedly obvious defence to absolutely anything other than rape demonstrates how ludicrous it is.

Consent in a Rape-Defence World would be:

a default position — I haven't said 'no', so I'm clearly willing to buy everything in your shop.

about giving in to the inevitable — Of course I'll give you my wallet, never mind that you've got a gun to my head.

about not fighting back — Why would I hesitate to get into a boxing match with someone twice my size who could break my neck in half a minute?

about failing to say 'no' — Obviously, if students in an exam hall aren't specifically told that they are not allowed to copy from each other, it's because they are allowed to do so.

about being unsure — I'm not sure if I've recovered enough after my back injury to lift weights, so, yes, of course you should pile them on to me.

If people actually had to live in a community that defined 'consent' as the rape-defence-world does, life probably wouldn't be safe, orderly or even minimally comfortable. Nonetheless, that is precisely the world in which women are almost invariably forced to contend with, if not actually live in, every day.

And even so, men will wonder why women they don’t know aren’t friendly, and resent being treated as Schrödinger’s Rapist, completely ignoring the fact that there is no real way for a woman to know whether or not a man, particularly one she doesn’t know, is a rapist. Ignoring that if it does transpire that a man is a rapist, neither cultural norms nor legal procedures are likely to support her especially if she was ‘friendly’ with him in any way whatsoever.

Despite that being the realm within which a woman often lives her life, every time there is an instance of violence against women (VAW) which is considered serious, there is hardly anyone who doesn’t express anguish and shock and outrage. Unfortunately, many of those expressing anguish speak in terms of 'mothers, sisters and daughters' not being safe, completely failing to recognise that the problem is not limited to 'mothers, sisters and daughters' not being safe; the lack of safety is a problem affecting all women whether they be relatives or prostitutes not related to one. A woman shouldn't have to fit into a category to be safe.

The basic framework of the discussion being questionable aside, there are few who do not lament the legal of enforcement of laws intended to protect women. Few who do not say that harsher punishments are required. For the most part though, those expressions of anguish about violence against women are not backed by adequate legislative, enforcement, social, and judicial reforms to actually make a difference to women's lives.

The rhetoric is loud, but is rarely grounded in law or good sense. Advocating the death penalty in all cases of rape is unconstitutional, never mind that the deterrent effect of the death penalty is questionable. Saying that rapists should be castrated completely ignores the fact that rape is not just about a man and his body; it is about power and domination. Definitions of rape are changing, and forms of rape like birth rape are only beginning to be recognised. While a castrated man may not rape as per traditional definitions, there appears to be a lack of evidence to suggest that a man inclined to rape is likely to be deterred by castration. Limiting further rape by men known to rape requires eliminating their access to potential victims possibly by imprisoning them.

Saying that the castration of rapists should be adopted by Indian law simply because a foreign law does so isn't guaranteed to be the best course of action. There exists no compelling reason for India to ape the laws of other countries when it comes to rape (or anything else, for that matter) — in fact, in some cases, Indian laws could be ‘better’ than some foreign laws. The Indian statutory rape shield law, for example, does not differentiate between types of rape victims, while New York’s rape shield laws do not protect some women who have been convicted of prostitution. Our laws could certainly be better, but they are not terrible. And when it comes to the judiciary, despite the horrifying Mathura rape case, India is by no means the only country where judges have demonstrated attitudes which are less than ideal.

There is absolutely no doubt that there are problems. Crimes against women are underreported, proving them is difficult, and convictions are low. The solutions, however, do not lie in indulging in frantic rhetoric. Wanting to see rapists die or be castrated is an emotional, and often justifiable, response to rape having been committed. The legal system was not established to exact revenge though — it is intended to establish temporal justice and societal order. Inordinate and excessive punishments do not meet the ends of the legal system, neither is there any certainty that such punishments would serve society well in the long run. And despite the outrage which may have been generated, no one's best interests are ever best served by launching witch-hunts without any thought. That said, societal interests are also not served by allowing the issue of violence against women to disappear from public discourse, as usually happens soon after a particular shocking instance of such violence occurs.

Some fast-track courts have been set up to deal with rape. However, as lawyers like H Salve have pointed out, fast-track court systems are jerky. What is important is not so much the setting up of fast-track courts but ensuring that courts function smoothly, that cases proceed to their logical conclusion, and that punishment is certain. In 2011, the overall conviction rate in cases of crimes against women according to the National Crime Records Bureau was 26.9%. Enhancing the severity of punishment is likely to further bring down the conviction rate as the quantum of proof required to establish the commission of an offence is likely to increase. What is therefore probably far more important to focus on than the introduction of harsher punishments is ensuring that punishments are more certain.

The critical issue is, of course, police investigation, as many lawyers have pointed out; courts are only as good as the evidence they receive. There need for reforms made to enforcement systems, and sensitisation programmes conducted for the benefit of those responsible for enforcing the law. A Member of Parliament had said, in the Rajya Sabha, that ‘non-human mastodons are convinced they'll get away because of perceived impotence of investigating agencies’ — that is a situation which needs to be addressed and to be changed.

Bills such as the Criminal Law Amendment Bill which was introduced in the Lok Sabha on December 18, 2012, imperfect though they may be, should be discussed, revised as required, and passed by Parliament — proposals to amend criminal law have been floating around for years now. Other necessary amendments to our statutes should also be passed, after being well thought through. Ethical issues, unconstitutionality and evidentiary requirements aside, mandatory capital punishment for rape is not a well-thought through proposal, especially given that it could result in rapists murdering those they rape simply to avoid capital punishment.

And, most importantly, social attitudes need to change not just with regard to the acceptability of violence in Indian society — 57% boys and 53% girls in India think a husband beating his wife is justified, for example — but also with the manner in which even those considered to be bonafide 'victims' of violence against women are viewed. The overwhelming opinion at the moment in relation to rape, for example, seems to be that ‘rape is murder', and that 'rape destroys women'. It isn't and doesn't unless you only value a woman with reference to what happens to her body. As heinous as rape is, it is not the sum total of what defines those raped, and perpetuating the 'rape destroys those raped' trope does a disservice to those who've been raped—they may be scarred and hurt but by no stretch of the imagination does that necessarily mean that they have been destroyed.

It has been argued that current social structures are based on rape, and that, in fact, the social contract was preceded by a sexual contract. If this is indeed true, only major systemic restructuring, not cosmetic changes, can reform society. A profusion of CCTVs is not the answer to the question of how to curb violence against women. Neither is the aggressive repetition of acceptable rhetoric.

The content of this blog may not be accurate, complete, impartial or up-to-date. None of its content is professional advice (legal or otherwise) and it should not be construed as such. The opinions contained in it solely those of their author and do not reflect those of anyone else.